Wasserman's Appellate Summaries
July 21, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
ECC Construction v. Ganson
Case No. B132155
California Court of Appeal, Second District, Division One
REAL PROPERTY-CONTRACT-CONTRACT WITH HOMEOWNERS ASSOCIATION DOES NOT OBLIGATE INDIVIDUAL CONDOMINIUM OWNERS TO PAY CONTRACTOR PERFORMING REPAIRS-DETERMINATION OF REASONABLE VALUE OF REPAIRS TO CONDOMINIUM UNITS
The Oak Park Calabasas condominium complex was damaged in the 1994 Northridge earthquake. The Homeowners’ Association executed a contract with ECC Construction, Inc. to repair the common areas and the individual units. A dispute arose as to the amount due ECC under the contract. ECC sued the Association and the numerous individual condominium owners and recorded a mechanics lien. The individual condominium owners motion for summary judgment was granted.
HELD: A nonprofit corporation, like a business corporation, has all the powers of a natural person in carrying out its activities. These powers specifically include the power to enter into contracts. A member of a corporation, including a nonprofit Homeowners Association is not personally liable for the debts, liabilities, or obligations of the corporation. The Corporations Code contemplates that third parties such as ECC will recover damages, if at all, from the association. In turn, the association will look to its members, if necessary, to pay its debts. Since there is no contract between ECC and the individual homeowners ECC would be entitled, at most, to the reasonable value of its work. ECC’s lien did not segregate the amount by owner, but stated the total sum allegedly due under the construction contract. The repair costs per unit could vary significantly and the reasonable value of the repairs per individual owner cannot be calculated by simply dividing the total amount of the lien by the total number of units. Affirmed.
People v. Diaz
Case No. C025890
California Court of Appeal, Third District
(Certified for publication with the exception of parts I and III of the Facts and parts I, II, III, IV, and V of the Discussion.)
SENTENCING-THREE STRIKE LAW AND ONE STRIKE AGGRAVATED SEX OFFENSE LAW ARE SUPPLEMENTAL NOT ALTERNATE SENTENCING SCHEMES
Diaz was convicted of forcible rape; kidnap with intent to commit rape; kidnapping; and false imprisonment. He was sentenced to 15 years to life for rape, which was doubled under the three strikes law to 30 years to life.
HELD: In most respects the one strike statutory scheme is cumulative to the three strikes law, and not an alternate sentencing scheme. The three strikes law and the statue directed at aggravated sex offenses serve different objectives. The former punishes recidivism, the latter aggravated sex offenses. There is simply no reason for suggesting that a recidivist criminal ought to be rewarded rather than penalized because his latest offense is sufficiently heinous to bring him within the provisions of the aggravated sex offenses statute. In this case the circumstance that brings it within the aggravated sex offenses statute is a kidnapping contemporaneous with the charged rape, which was not the charged strike. There is no dual use of the same offense in sentencing. An amended abstract of judgment was ordered prepared.
Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency v. Mammoth Mountain Ski Area
Case No. C029659
California Court of Appeal, Third District
GOVERNMENT-REQUIREMENTS FOR ADOPTION OF REDEVELOPMENT PLAN-COMMUNITY REDEVELOPMENT LAW-REQUIREMENT FOR ENVIRONMENTAL IMPACT REPORT WHEN COMMUNITY REDEVELOPMENT PLAN
The Town of Mammoth Lakes adopted a redevelopment plan and approved an associated Environmental Impact Report. The Town’s very comprehensive and ambitious redevelopment plan specifically authorized the Agency "to provide or participate in providing 72 separate and identified public improvements and facilities and 400 new housing units. Plaintiffs sued, contending a failure to comply with the Community Redevelopment Law and failure to comply with the California Environmental Quality Act. The trial court granted judgment to the Town of Mammoth.
HELD: If a redevelopment agency desires to use its funds to purchase land or to construct public buildings, facilities or other improvements which will assist in eliminating blight, the Health and Safety Code requires the redevelopment agency to provide for the acquisition of property and installation or construction of each facility in the redevelopment plan. The redevelopment plan EIR thus analyzed primarily the cumulative impacts that could foreseeably occur if all of the proposed projects were actually developed. By defining a redevelopment plan and all of its proposed projects as a single project, the Legislature implied that as much environmental review as possible should occur at the outset of the redevelopment process, with subsequent review limited to situations where significant changes or "new information" on the plan’s constituent projects becomes available. Because each project is deemed approved for purposes of CEQA, the significant impacts to the environment likely to be caused by each individual project must be analyzed in the redevelopment plan EIR at least to the same extent each project is detailed in the redevelopment plan and its accompanying Final Report. The Community Redevelopment Law was also violated, since the Town and trial court’s findings cannot establish all of the requirements necessary to show the existence of a blighted area, the Town’s adoption of the redevelopment plan must be vacated in its entirety. Reversed.
McKeon v. Wal-Mart Stores
Case No. E025572
California Court of Appeal, Fourth District, Division Two
TORTS-PECULIAR RISK DOCTRINE-LIABILITY OF CONTRACTING PARTY TO EMPLOYEES OF INDEPENDENT CONTRACTOR PERFORMING WORK FOR CONTRACTING PARTY
Wal-Mart hired plaintiff’s employer, Musi-Cal, to install sound systems in several Wal-Mart stores. The work involved running wires and installing speakers on the store ceilings. In performing the work a Wal-Mart employee brought a forklift, with the extension and platform already assembled, to McKeon and another Musi-Cal employee, Herron. There was a chain provided to secure the extension to the forklift. No other chain was provided. While Herron was driving the forklift and McKeon was working on the platform, the platform hit a ceiling pipe, disengaged from the extension, and fell about 12 feet to the floor with McKeon on it. The jury found Wal-Mart was negligent in providing unsafe equipment and allocated 55 percent of the responsibility for the accident to Musi-Cal, 23 percent to Wal-Mart, 15 percent to the manufacturer of the equipment, and 7 percent to plaintiff.
HELD: Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable in tort if the contractor negligently injures others in performing the work. The hiring party’s liability does not extend to the independent contractor’s employees, since the contractor’s liability is limited to workers’ compensation benefits. A hirer of an independent contractor may be liable to the independent contractor’s employee for the hirer’s own independent fault. Wal-Mart was liable not for Herron’s and plaintiff’s use of the equipment in an unsafe manner, but for Wal-Mart’s own negligence in providing the equipment in an unsafe condition. Affirmed.
United States v. Pinjuv
Case No. 99-10597
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-REVOCATION OF SUPERVISED RELEASE-FAILURE TO COMPLY WITH CONDITIONS OF SUPERVISED RELEASE-EVIDENCE OF INABILITY TO COMPLY
The district court revoked Pinjuv's supervised release after Pinjuv admittedly failed to comply with a condition of supervision requiring her to participate in and successfully complete a mental health treatment program. Pinjuv's crimes and her actions in prison gave evidence of mental disturbance.
HELD: The guiding principle for determining the validity of a condition of supervised release is whether the condition imposed can reasonably be said to contribute significantly both to the rehabilitation of the convicted person and to the protection of the public. It would not be fair to revoke probation in every case in which a person could not conform to the conditions through no fault of theirs. No evidence was submitted in this matter by Pinjuv that her disruptive conduct was involuntary. Affirmed.
Braunling v. Countrywide Home Loans
Case No. 98-56929
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-EMPLOYMENT-EVIDENCE SUFFICIENT TO SUPPORT VIOLATION OF AMERICANS WITH DISABILITY ACT-INFLICTION OF EMOTIONAL DISTRESS
Braunling suffers from multiple sclerosis (MS), which at times may cause extreme fatigue, dizziness, sensitivity to light, heat, humidity and stress. She is unable to work overtime or take work home. She worked for Countrywide as a loan underwriting supervisor for a year. After she requested and was given a transfer to another department her work problems started. Due to Countrywide's perception that Braunling was not performing adequately in the new position, she was counseled verbally and in writing both by her immediate supervisor Kister with whom she had a personality clash, and other supervisors. She was terminated several months later. She filed suit under the Americans with Disabilities Act and the Fair Employment and Housing Act. The district court granted Countrywide's motion for summary judgment.
HELD: To secure relief under the ADA, Braunling must show that: (1) she is a disabled person within the meaning of the statute; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job she holds or seeks; and, (3) that she suffered an adverse employment action because of her disability. An employee is disabled if her physical or mental impairment substantially limits one or more of the major life activities. MS fits into this categorization of a disability. An employer must reasonably accommodate the employee with a disability unless the employer can show that such an accommodation would impose an undue hardship on the running of the business. The plaintiff has the burden of providing at least a facial showing that a reasonable accommodation is possible. Construing the evidence in the light most favorable to Braunling, it appears that Braunling was not qualified for the job as senior underwriting supervisor. There was no extreme or outrageous conduct by Countrywide, which would support a cause of action for infliction of emotional distress. Affirmed.
Larita-Martinez v. Immigration and Naturalization Service
Case No. 98-71452
U.S. Court of Appeals for the Ninth Circuit
IMMIGRATION-NO JURISDICTION OF FEDERAL COURTS TO REVIEW DISCRETION OF INS IN DEPORTATION DECISION-WITHHOLDING OF DEPORTATION BECAUSE OF EXTREME HARDSHIP-REVIEW OF DUE PROCESS VIOLATION
Larita-Martinez entered the United States from Mexico without inspection in 1989 when he was fourteen years old. Except for a period of one week, during which he returned to Mexico to visit his then-ill mother, he has lived continuously in the United States. After receiving an order to show cause, he conceded deportability and applied for suspension of deportation and, alternatively, voluntary departure. He argued at his hearing that separation from his extended relatives in the U.S. would be an extreme hardship to him. His petition was denied.
HELD: The Illegal Immigration Reform and Immigrant Responsibility Act discontinued the jurisdiction of the federal courts to review a deportation decision for abuse of discretion. The Court made a review of whether a due process violation occurred and concluded that Martinez had not made such showing. Affirmed.
Turin & Sons v. Internal Revenue Service
Case No. 99-70130
U.S. Court of Appeals for the Ninth Circuit
TAXATION-ACCRUAL METHOD OF ACCOUNTING NOT REQUIRED OF TAXPAYER THAT DID NOT HAVE MERCHANDISE INVENTORY
Turin & Sons is a corporation that provides paving services. It purchases its asphalt from a sister manufacturing corporation. When bidding on a contract, taxpayer prices the asphalt at its cost. The sister company ships the asphalt just hours before a paving job. Because of the physical properties of emulsified asphalt, Turin must use it within several hours of shipment. Once a job is completed, Turin is generally paid within 10 to 30 days of billing. Turin used a cash method of accounting for federal tax purposes, taking deductions for the cost of the asphalt for a job immediately upon its payment to the sister corporation and recognizing income for a job when it received payment. The Commissioner of Internal Revenue determined that asphalt was "merchandise," and was inventories, which required Turin to use the accrual method of accounting. The Tax Court held for Turin.
HELD: The Commissioner's decision to require the use of a particular method of inventory accounting is a discretionary one and that his interpretation of the statute's standard should not be interfered with unless clearly unlawful. Given the rationale of the accrual method of accounting for income when inventory is held by a business, the Tax Court decision that asphalt is not merchandise inventory, and that taxpayer should not be required to use the accrual method is upheld. Affirmed.
United States v. Magallon-Jiminez
Case No. 99-50561
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SUFFICIENCY OF EVIDENCE
Police had a wiretap on a residence suspected of being a place where drugs were stored for transportation. They overheard a conversation that drugs were to be transported. The same day Jiminez's co-defendant was observed carrying a case of Pepsi Cola into the residence, and, shortly thereafter, out of the residence and being placed in a vehicle. The vehicle left the residence and stopped to pick up Jiminez. A traffic stop was made and no suspicious packages were observed. There was no probable cause for a search and the vehicle was allowed to proceed. The police officer was advised by radio to make another stop and arrest the driver for driving with an expired driver's license. The second stop was made. The officer observed the Pepsi case under Jiminez's feet. The Pepsi case was observed to have some packages that were "wrapped narcotics." After trial Jiminez's motion to acquit was granted as to a conspiracy count, but the conviction for possession with intent to distribute was not dismissed. Magallon-Jiminez was convicted of possession of cocaine with intent to distribute.
HELD: To sustain a conviction for possession with intent to distribute cocaine, the government must prove that the defendant (1) knowingly, (2) possessed the cocaine, (3) with intent to distribute it. Viewing the evidence as a whole and in the light most favorable to the prosecution, there was sufficient evidence such that a rational trier of fact could have found the essential elements of the crime were proved beyond a reasonable doubt. Affirmed.
Wasserman's Archived Appellate Summaries
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